FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: THORPE
INSULATION CO.,
Debtor,
CONTINENTAL INSURANCE COMPANY,
as successor in interest to certain
policies issued by Harbor
Insurance Company,
Appellant, No. 10-55744
v. D.C. No.
2:08-cv-07862-DSF
THORPE INSULATION COMPANY,
Appellee, OPINION
and
OFFICIAL CREDITORS’ COMMITTEE OF
THORPE INSULATION COMPANY AND
PACIFIC INSULATION COMPANY,
Movant,
FUTURE CLAIMS REPRESENTATIVE,
Real-party-in-interest.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
August 30, 2011—Pasadena, California
Filed January 30, 2012
839
840 IN MATTER OF THORPE INSULATION CO.
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Richard Seeborg, District Judge.*
Opinion by Judge Gould
*The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
842 IN MATTER OF THORPE INSULATION CO.
COUNSEL
Robert Binion, Rodney Eshelman, and Alan Palmer Jacobus,
Carroll, Burdick & McDonough, LLP, San Francisco, Califor-
IN MATTER OF THORPE INSULATION CO. 843
nia; David C. Christian II and Jason J. DeJonker, Seyfarth
Shaw, LLP, Chicago, Illinois; Todd C. Jacobs, Matthew A.
Bills, and John E. Bucheit, Grippo & Elden LLC, Chicago,
Illinois; and James M. Harris, Seyfarth Shaw, LLP, Los
Angeles, California, for the appellant.
Daniel J. Bussel, David M. Guess, Kenneth N. Klee, and
Thomas E. Patterson, Klee, Tuchin, Bogdanoff & Stern LLP,
Los Angeles, California; Margie I. Dupuis, Richard W.
Esterkin, Asa S. Hami, Michel Y. Horton, Charles J. Malaret,
and Paul A. Richler, Morgan, Lewis & Bockius LLP, Los
Angeles, California; Scotta E. McFarland and Jeremy V.
Richards, Pachulski, Stang, Ziehl, Young, & Jones LLP, Los
Angeles, California; Thomas M. Peterson and Jeffrey S.
Raskin, Morgan, Lewis & Bockius LLP, San Francisco, Cali-
fornia, for the debtor-appellee.
Peter J. Benvenutti and Michaeline H. Correa, Jones Day, San
Francisco, California; Peter Lockwood and Ronald E. Reinsel,
Caplin & Drysdale, Washington, D.C., for the movant.
Gary Fergus, Fergus, A Law Office, San Francisco, Califor-
nia, for the real-party-in-interest.
OPINION
GOULD, Circuit Judge:
This appeal involves Continental Insurance Company’s
(“Continental”) pursuit of a breach of contract claim against
Thorpe Insulation Company (“Thorpe”) in Thorpe’s Chapter
11 bankruptcy proceeding. The district court affirmed the
bankruptcy court’s orders denying Continental’s motion to
compel arbitration and disallowing its claim. We now affirm.
844 IN MATTER OF THORPE INSULATION CO.
I
A
Thorpe distributed and installed asbestos-containing prod-
ucts from 1948 to 1972. About 12,000 claims for asbestos-
related injuries or deaths have been brought against Thorpe.
Thorpe’s insurers, including Continental, have paid more than
$180 million defending and indemnifying Thorpe for these
claims. In 1985, Continental and Thorpe entered into the Wel-
lington Agreement, an omnibus insurance coverage and
claims handling agreement between asbestos producers and
their insurers. The Wellington Agreement provides for bind-
ing arbitration of coverage disputes.
In 1998, Continental told Thorpe that Thorpe had
exhausted its coverage under Continental’s insurance policies
and ceased indemnifying Thorpe. Thorpe then sought, for the
first time, “non-products” coverage under Continental’s poli-
cies, asserting that such “non-products” coverage was not
subject to the policies’ liability limits. Continental disputed
Thorpe’s coverage claim and initiated arbitration under the
Wellington Agreement. The arbitrator rejected Thorpe’s claim
and found that Thorpe had no remaining coverage rights
under Continental’s policies. Thorpe appealed, and the parties
agreed to settle.
The parties executed an integrated Settlement Agreement
and Release (“Settlement Agreement”) in April of 2003.
Whether there has been a breach of this agreement and
whether that should be determined by an arbitrator or by the
bankruptcy court are the issues presented by this litigation.
The Settlement Agreement provides for mutual releases,
and states in relevant part:
[Thorpe] fully releases and forever discharges [Con-
tinental] . . . of and from any and all claims, actions,
IN MATTER OF THORPE INSULATION CO. 845
causes of action, rights, liabilities, obligations and
demands of every kind and nature, known and
unknown, suspected or unsuspected, past, present,
and future, arising out of, related to, or in any way
connected with, in whole or in part, any claim of any
kind under the Policies or relating to the [arbitration]
....
The Settlement Agreement also contains two warranties
that are central to this case. First, the “Assignment Warranty”
provides:
The parties to this Agreement each represent and
warrant that they have not and will not in any man-
ner assign, transfer, convey or sell, or purport to
assign, transfer, convey or sell to any entity or per-
son any cause of action, chose in action, or part
thereof, arising out of or connected with the matters
released herein, and that they are the only persons or
entities entitled to recover for damages under such
claims, causes of action, actions, and rights.
Second, the “Establishment Warranty” provides:
The parties to this Agreement each further represent
and warrant that they will not in any way voluntarily
assist any other person or entity in the establishment
of any claim, cause of action, action, or right against
the other party to this Agreement arising out of,
resulting from or in any way relating to the matters
released.
Thorpe and Continental agreed to arbitrate disputes regard-
ing the Settlement Agreement and its terms.
The Settlement Agreement released only Thorpe’s claims
against Continental. It does not refer to the direct action rights
846 IN MATTER OF THORPE INSULATION CO.
of individual asbestos claimants1 or to the contribution,
indemnity, or subrogation rights of other insurers. As such,
direct action claims and other insurers’ claims against Conti-
nental were not released under the terms of the Settlement
Agreement.
After the 2003 Settlement Agreement, as Thorpe’s cover-
age under other insurers’ policies neared its limits, coverage
actions commenced in California state court. Thorpe and the
insurers began settlement discussions that contemplated
Thorpe’s filing for bankruptcy. Thorpe’s goal was to confirm
a plan of reorganization pursuant to section 524(g) of the
Bankruptcy Code.
Section 524(g) is unique to the asbestos context. It provides
a mechanism for consolidating asbestos-related assets and lia-
bilities of a debtor into a single trust for the benefit of present
and future asbestos claimants. See H.R. Rep. 103-835, at
46-48 (1994). Section 524(g) authorizes the bankruptcy court
to enter a “channeling injunction”—channeling claims to the
trust—to prevent claimants from suing the debtor. 4 Collier
on Bankruptcy ¶ 524.07 (Alan N. Resnick & Henry J. Som-
mer eds., 16th ed. 2011). The injunction may also bar actions
against third parties, such as insurers, that are based on
asbestos-related claims against the debtor, if the third parties
contribute to the trust in amounts that are commensurate with
their likely liability. Id. One requirement for a § 524(g)
injunction is that, “as part of the process of seeking approval
of the plan of reorganization,” a class of claimants be estab-
lished and vote, by at least 75 percent of those voting, to
approve the plan. 11 U.S.C. § 524(g)(2)(B)(ii)(IV)(bb).
In preparation for the bankruptcy and to achieve settlement
in the state court actions, Thorpe negotiated with insurers
1
California law permits a tort claimant to bring a direct action against
an insurer to recover on a judgment against the insured. See Cal. Ins. Code
§ 11580(b)(2).
IN MATTER OF THORPE INSULATION CO. 847
other than Continental. Certain insurers agreed to fund the
§ 524(g) trust in consideration of Thorpe’s filing for bank-
ruptcy and seeking a § 524(g) injunction that would protect
the insurers against asbestos-related claims arising out of poli-
cies issued to Thorpe. These insurers (the “Settling Insurers”)
agreed to assign their contribution, indemnity, and subroga-
tion rights against Thorpe’s other insurers, including Conti-
nental, to Thorpe and the trust to be established under
§ 524(g). Before filing for bankruptcy, Thorpe also collabo-
rated with asbestos claimants to begin structuring a § 524(g)
plan, as § 524(g) requires 75 percent of such claimants to con-
sent to the plan as one requirement for it to be confirmed.
Continental contends that the above actions violated the
Assignment Warranty and the Establishment Warranty of the
2003 Settlement Agreement. Continental also alleges that
Thorpe encouraged and assisted the filing of three direct
action lawsuits against Continental in September of 2007, in
violation of the Establishment Warranty. Continental tried to
arbitrate its claim that Thorpe’s actions breached the Settle-
ment Agreement. In a letter requesting arbitration, Continen-
tal made clear its concern over “a bankruptcy filing and/or
any actions related thereto.”2 The arbitrator scheduled a hear-
ing for October 16, 2007.
2
The letter asked that arbitration proceed “as expeditiously as possible,”
because “a bankruptcy filing and/or any actions related thereto pertinent
to the . . . policies may irreparably harm Continental[’s] rights under the
Settlement Agreement.” Continental stated that it had reason to believe
“that Thorpe is now preparing for bankruptcy and that, in doing so, Thorpe
may be endeavoring to acquire, assert, or assign alleged rights against
Continental . . . that were released in the Settlement Agreement, for exam-
ple contribution rights acquired from other carriers in settlements,” and
“that Thorpe may be negotiating a bankruptcy with its adversaries, the
asbestos claimants and their lawyers, and to the exclusion of its insurers.”
The letter also complained that “Thorpe [had] not been forthright about its
bankruptcy plans.”
848 IN MATTER OF THORPE INSULATION CO.
B
On October 15, 2007, Thorpe filed for Chapter 11 bank-
ruptcy. This stayed arbitration pursuant to 11 U.S.C. § 362.
Continental filed a proof of claim in the bankruptcy court on
February 11, 2008. Thorpe objected to the claim. Continental
filed an amended proof of claim and moved to compel arbitra-
tion. The amended claim alleged the following to be viola-
tions of the Settlement Agreement: (1) Thorpe’s prepetition
acquisition of the Settling Insurers’ contribution, indemnity,
and subrogation rights against Continental;3 (2) Thorpe’s
post-petition assignment of such rights to the trust created
pursuant to the § 524(g) plan; (3) Thorpe’s prepetition
encouragement of direct action claims against Continental;
and (4) “Thorpe’s cooperation and participation as a ‘Plan
Proponent’ in drafting, proposing, and seeking confirmation
of a Plan designed to assist asbestos claimants in bringing
direct action claims against . . . Continental.”
The bankruptcy court set a hearing on the motion to compel
arbitration and the claim objection for October 16, 2008; it
told the parties that it would decide the motion to compel
arbitration first and that it would then resolve legal but not
factual issues relating to the claim objection. Continental did
not conduct any discovery before the October 16 hearing.4
3
Continental alleges that Thorpe’s post-petition acquisition of one Set-
tling Insurer’s rights also violates the Settlement Agreement.
4
Continental wanted to wait to conduct discovery until after a decision
on its motion to compel arbitration. Understanding this, the bankruptcy
court said to Continental:
I’m not going to prohibit you from doing discovery, I’m not
going to require you to do discovery. . . . If there are factual
issues [after the legal issues are resolved], . . . I can’t resolve
those without an evidentiary hearing [that] I’m not going to do
at that point. So that means if you wanted to wait to do your dis-
covery until after your hearing on your motion to arbitrate, you
can because you’ll have some more time after that.
IN MATTER OF THORPE INSULATION CO. 849
At the October 16 hearing, the bankruptcy court denied
Continental’s motion to compel arbitration and disallowed its
claim. The bankruptcy court held that the allowance or disal-
lowance of Continental’s claim was a core matter under 28
U.S.C. § 157(b)(2).5 But the core nature of the proceeding
“[didn’t] answer the [arbitration] question.” The bankruptcy
court recognized the “strong federal policy in favor of . . .
arbitration,” but stated that in core matters, it had “discretion
in an appropriate case not to send it to arbitration.” Quoting
from a prior tentative ruling, the bankruptcy court explained
why in its view this case was such an appropriate case, and
exercised its discretion to deny Continental’s motion to com-
pel arbitration:
Although the conduct of which [Continental] com-
plain[s] may have commenced prepetition, the acts
of which [Continental] complain[s], if true, are inex-
tricably intertwined with the manner in which
[Thorpe is] attempting to structure, orchestrate, and
obtain approvals for what is likely to be a complex
plan of reorganization. Resolution of these claims
would require the trier of fact to adjudicate whether
in conducting and administering these Chapter 11
cases and negotiating with the various constituencies
involved in the case concerning the prospect of a
consensual plan of reorganization, [Thorpe] has
somehow run afoul of contractual provisions con-
tained in a prepetition settlement agreement with
[Continental]. Such matters are within the exclusive
jurisdiction of the Bankruptcy Court. As a matter of
fundamental bankruptcy policy, only a Bankruptcy
Court should decide whether the manner in which
someone has administered a bankruptcy estate gives
rise to a claim for damages. Non-bankruptcy courts
5
Section 157(b)(2) provides a nonexhaustive list of core proceedings
that includes “allowance or disallowance of claims against the estate.” See
28 U.S.C. § 157(b)(2)(B).
850 IN MATTER OF THORPE INSULATION CO.
cannot be the arbiters of such issues. . . . Moreover,
the arguments that [Continental] wish[es] to advance
are inextricably intertwined with the issues that the
Court will have to address in connection with confir-
mation of the proposed plan . . . .
....
. . . The very terms of the plan themselves are among
the alleged breaches of the settlement agreement.6
After denying Continental’s motion to compel arbitration,
the bankruptcy court turned to Continental’s claim and
Thorpe’s claim objection. It sustained Thorpe’s claim objec-
tion and disallowed Continental’s claim as a matter of law.
First, as to Thorpe’s alleged breaches of the Assignment
Warranty, the bankruptcy court held that the plain language
of the Settlement Agreement precludes Thorpe from assigning
claims to third parties, but does not preclude acquiring claims
from third parties, so Thorpe’s mere acquisition of the Set-
tling Insurers’ contribution, indemnity, and subrogation rights
against Continental did not breach the Assignment Warranty.7
The bankruptcy court also rejected as a matter of law Con-
tinental’s argument that Thorpe’s assignment of the Settling
Insurers’ rights to the § 524(g) trust breached the Assignment
Warranty. The bankruptcy court reasoned that because Thorpe
could not have released third parties’ claims in the Settlement
Agreement, the Settling Insurers’ contribution, indemnity, and
subrogation claims did not “vaporiz[e]” once assigned to
6
Cf. 28 U.S.C. § 157(b)(2)(A), (L) (“Core proceedings include . . . mat-
ters concerning the administration of the estate; . . . confirmation of
plans.”).
7
The bankruptcy court found explicitly that “no amount of extrinsic evi-
dence” could “change a prohibition on transferring out to a prohibition on
receiving.”
IN MATTER OF THORPE INSULATION CO. 851
Thorpe. And because those claims, as assets, “ought to go in
the trust,” the bankruptcy court held that even if the Assign-
ment Warranty by its terms precluded Thorpe from then
assigning them to the trust, the provision would not be
enforceable under Bankruptcy Code sections 524(g),
541(c)(1), and 1123(a)(5)(B).
The bankruptcy court next addressed Thorpe’s alleged
breaches of the Establishment Warranty. It concluded that,
even assuming Continental’s broad reading of the warranty, a
breach of contract claim based on Thorpe’s actions to assist
asbestos claimants in bringing claims against Continental—as
part of its efforts to confirm a reorganization plan and create
a § 524(g) trust—could not succeed as a matter of bankruptcy
law. The bankruptcy court reasoned along these lines: Given
that “agreements in which a Debtor contracts away prepetition
rights that it would otherwise have had in the context of a
bankruptcy case are not generally enforceable,” the conduct
alleged to be a breach in this case, “the formulation and struc-
turing, negotiation, [and] attempt to arrive at the very kind of
plan structure that [§ ] 524(g) is about,” could not be “a
breach of an enforceable contract.” Continental appealed to
the district court.
The district court affirmed the bankruptcy court’s order
denying Continental’s motion to compel arbitration and
affirmed the order disallowing Continental’s claim in large
part. But the district court reversed the bankruptcy court’s dis-
allowance order as to Continental’s allegations concerning
Thorpe’s prepetition encouragement of direct actions against
Continental.
The district court agreed that resolution of Continental’s
claim was a core proceeding. It also agreed that the bank-
ruptcy court had discretion to deny Continental’s motion to
compel arbitration, “at least to the extent that arbitration of
the claim would conflict with the purposes of the Bankruptcy
Code,” and held that the bankruptcy court’s findings “support
852 IN MATTER OF THORPE INSULATION CO.
the conclusion that arbitration of the claims would conflict
with the underlying purposes of the Bankruptcy Code.” The
district court upheld the bankruptcy court’s findings and con-
clusions regarding the Assignment Warranty, as well as its
finding that Thorpe’s bankruptcy-related actions alleged to
breach the Establishment Warranty were “part-and-parcel of
its attempt to establish a trust . . . and to avail itself . . . of the
protections of 11 U.S.C. § 524(g).” However, the district
court held that the bankruptcy court’s findings did not support
disallowance of Continental’s claim to the extent that it
alleged Thorpe’s prepetition encouragement of direct action
claims against Continental, and remanded this issue to the
bankruptcy court. The district court stated that its opinion
regarding the core nature of Continental’s claims against the
bankruptcy estate “applie[d] with equal force to [the
remanded] claims” and “expresse[d] no opinion on whether
the bankruptcy court should refer these claims to arbitration.”
On remand, Thorpe moved for summary judgment on the
remanded portions of its objection to Continental’s claim, and
Continental moved to compel arbitration of the remanded “en-
couragement claims.” Continental requested discovery, but
the bankruptcy court neither gave Continental an opportunity
to conduct discovery nor held an evidentiary hearing before
ruling on the motions.
At a May 28, 2009 hearing, Continental refused to argue
the remanded issue—Thorpe’s alleged prepetition encourage-
ment of three direct actions—as a “standalone claim” unre-
lated to Thorpe’s larger goal of filing for bankruptcy and
confirming a § 524(g) plan. In light of Continental’s unwill-
ingness to separate the direct actions from Thorpe’s efforts to
negotiate a plan and prepare for bankruptcy, the bankruptcy
court concluded that its previous analysis of Thorpe’s post-
petition conduct, that “contracts for prepetition waivers of
bankruptcy-related rights [are] unenforceable,” applied with
equal force to Thorpe’s prepetition conduct. The bankruptcy
court granted Thorpe’s post-remand motion for summary
IN MATTER OF THORPE INSULATION CO. 853
judgment, sustained Thorpe’s claim objection, and disallowed
Continental’s claim in its entirety.
The bankruptcy court also denied Continental’s renewed
motion to compel arbitration. It concluded that it had discre-
tion not to enforce the arbitration clause in the Settlement
Agreement for two reasons. First, the case required centraliza-
tion, because resolution of Continental’s claim had to be coor-
dinated with the plan confirmation process and because
Continental’s claim and its objection to the plan confirmation
overlapped factually.8 Second, the remaining claims, as
asserted by Continental on remand, still involved Thorpe’s
exercise of its rights in bankruptcy and should be decided by
a bankruptcy judge.
The bankruptcy court indicated that if Continental’s claim
“really could be separated out and be a standalone claim,”
then arbitration might be appropriate. But, from Continental’s
comments at the hearing and its moving papers, the bank-
ruptcy court found that “[t]his one little piece cannot be
extracted and treated as something different from” Thorpe’s
actions in the bankruptcy. The bankruptcy court stated that
Continental’s post-remand claim was “inextricably inter-
twined with something I really need to adjudicate,” and so, it
reasoned, “I can’t let this go to arbitration because it’s too
fraught with peril that . . . a nonbankruptcy forum would end
up adjudicating things that [it] really ha[s] no business adjudi-
cating, lest [it] run into a violation of bankruptcy policy.”
Continental again appealed to the district court.
The district court affirmed the bankruptcy court’s orders
denying Continental’s motion to compel arbitration and disal-
lowing its claim, concluding that “Continental repeatedly
refused to limit the scope of its claim to matters that were
within the scope of the remand and would not require the
8
Continental’s challenge to Thorpe’s § 524(g) plan is the subject of a
related appeal in this court, Nos. 10-56543 & 10-56622.
854 IN MATTER OF THORPE INSULATION CO.
arbitrator to decide important matters of bankruptcy policy
involving § 524(g).” Continental then appealed to this court.
II
We have jurisdiction under 28 U.S.C. § 158(d) and 9
U.S.C. § 16(a)(1)(B). See Mintze v. Am. Gen. Fin. Servs., Inc.
(In re Mintze), 434 F.3d 222, 227 (3d Cir. 2006). “We review
de novo a district court’s decision on appeal from a bank-
ruptcy court.” Decker v. Tramiel (In re JTS Corp.), 617 F.3d
1102, 1109 (9th Cir. 2010). We review the bankruptcy court’s
findings of fact for clear error and its conclusions of law de
novo. Id. Whether a bankruptcy court has discretion to deny
a motion to compel arbitration is a question of law that we
review de novo. Gandy v. Gandy (In re Gandy), 299 F.3d 489,
494 (5th Cir. 2002). If we conclude that the bankruptcy court
had discretion, we review its exercise of discretion only for
abuse of discretion. Id. We review the denial of discovery
requests for abuse of discretion. See Johnson v. Neilson (In re
Slatkin), 525 F.3d 805, 810 (9th Cir. 2008). We review de
novo a bankruptcy court’s disallowance of a claim as a matter
of law. See id.
III
Continental contends that its claim should be arbitrated pur-
suant to the arbitration clause in the Settlement Agreement. It
argues first, that its claim is non-core, and second, that even
if its claim is core, it should be arbitrated because arbitration
would not inherently conflict with the Bankruptcy Code. We
disagree.
A
[1] The Federal Arbitration Act, 9 U.S.C. § 1 et seq., estab-
lishes “a liberal federal policy favoring arbitration agree-
ments.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983). The Act provides that agree-
IN MATTER OF THORPE INSULATION CO. 855
ments to arbitrate “shall be valid, irrevocable, and enforce-
able, save upon such grounds as exist at law or in equity for
the revocation of any contract,” and that a court must stay a
proceeding if it is satisfied that an issue in the proceeding is
arbitrable under such an agreement. 9 U.S.C. §§ 2-3. A
court’s duty to “rigorously enforce” arbitration agreements
does not diminish “when a party bound by an agreement
raises a claim founded on statutory rights.” Shearson/Am.
Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987) (internal
quotation marks omitted).
[2] “Like any statutory directive,” however, “the Arbitra-
tion Act’s mandate may be overridden by a contrary congres-
sional command.” Id. at 227. “If Congress did intend to limit
or prohibit waiver of a judicial forum for a particular claim,
such an intent will be deducible from the statute’s text or leg-
islative history, or from an inherent conflict between arbitra-
tion and the statute’s underlying purposes.” Id. (alteration,
citation, and internal quotation marks omitted).
[3] We must decide whether Congress “intended to make
an exception to the Arbitration Act” for claims arising in
bankruptcy proceedings, “an intention discernible from the
text, history, or purposes of the [Bankruptcy Code].” See id.
Neither the text nor the legislative history of the Bankruptcy
Code reflects a congressional intent to preclude arbitration in
the bankruptcy setting. See Whiting-Turner Contracting Co.
v. Elec. Mach. Enters., Inc. (In re Elec. Mach. Enters., Inc.),
479 F.3d 791, 796 (11th Cir. 2007); In re Mintze, 434 F.3d at
231; Mor-Ben Ins. Mkts. Corp. v. Trident Gen. Ins. Co. (In re
Mor-Ben Ins. Mkts. Corp.), 73 B.R. 644, 648 (B.A.P. 9th Cir.
1987). We ask, then, whether there is an inherent conflict
between arbitration and the underlying purposes of the Bank-
ruptcy Code. See McMahon, 482 U.S. at 227.
[4] This issue is one of first impression in our circuit. Sev-
eral of our sister circuits that have addressed the issue have
considered, as a threshold matter, a distinction between core
856 IN MATTER OF THORPE INSULATION CO.
and non-core proceedings. See In re Elec. Mach. Enters., 479
F.3d at 796; U.S. Lines, Inc. v. Am. S.S. Owners Mut. Prot. &
Indem. Ass’n (In re U.S. Lines), 197 F.3d 631, 640 (2d Cir.
1999); Ins. Co. of N. Am. v. NGC Settlement Trust & Asbestos
Claims Mgmt. Corp. (In re Nat’l Gypsum Co.), 118 F.3d
1056, 1066-69 (5th Cir. 1997). In non-core proceedings, the
bankruptcy court generally does not have discretion to deny
enforcement of a valid prepetition arbitration agreement. In re
Elec. Mach. Enters., 479 F.3d at 796; Crysen/Montenay
Energy Co. v. Shell Oil Co. (In re Crysen/Montenay Energy
Co.), 226 F.3d 160, 166 (2d Cir. 2000); 2 Martin Domke,
Domke on Commercial Arbitration § 52:6 (3d ed. 2011); see
also MCI Telecomms. Corp. v. Gurga (In re Gurga), 176 B.R.
196, 199-200 (B.A.P. 9th Cir. 1994). In core proceedings, by
contrast, the bankruptcy court, at least when it sees a conflict
with bankruptcy law, has discretion to deny enforcement of an
arbitration agreement. Phillips v. Congelton, L.L.C. (In re
White Mountain Mining Co.), 403 F.3d 164, 169 (4th Cir.
2005); In re U.S. Lines, 197 F.3d at 640; In re Nat’l Gypsum,
118 F.3d at 1067-68; Domke, supra, § 52:7. The rationale for
the core/non-core distinction, as explained by the Second Cir-
cuit, is that non-core proceedings “are unlikely to present a
conflict sufficient to override by implication the presumption
in favor of arbitration,” whereas core proceedings “implicate
more pressing bankruptcy concerns.” In re U.S. Lines, 197
F.3d at 640.
[5] However, “not all core bankruptcy proceedings are
premised on provisions of the Code that ‘inherently conflict’
with the Federal Arbitration Act; nor would arbitration of
such proceedings necessarily jeopardize the objectives of the
Bankruptcy Code.” In re Nat’l Gypsum, 118 F.3d at 1067. We
agree that the core/non-core distinction, though relevant, is
not alone dispositive. We join our sister circuits in holding
that, even in a core proceeding, the McMahon standard must
be met—that is, a bankruptcy court has discretion to decline
to enforce an otherwise applicable arbitration provision only
if arbitration would conflict with the underlying purposes of
IN MATTER OF THORPE INSULATION CO. 857
the Bankruptcy Code. See McMahon, 482 U.S. at 227; In re
Elec. Mach. Enters., 479 F.3d at 796 (Eleventh Circuit); In re
Mintze, 434 F.3d at 231 (Third Circuit); In re White Mountain
Mining, 403 F.3d at 169-70 (Fourth Circuit); In re U.S. Lines,
197 F.3d at 640 (Second Circuit); In re Nat’l Gypsum, 118
F.3d at 1069-70 (Fifth Circuit).
B
[6] Here, we agree with the bankruptcy court and the dis-
trict court that the resolution of Continental’s claim was a
core proceeding. Continental argues that its “state law breach
of contract claim” is non-core because “it is based on state
law and arose outside of and independent of Thorpe’s bank-
ruptcy.” Yet regardless of how Continental characterizes its
claim, Continental filed a proof of claim, and Thorpe objected
to the claim, so under 28 U.S.C. § 157(b)(2)(B), the allow-
ance or disallowance of that claim was a core proceeding. See
Durkin v. Benedor Corp. (In re G.I. Indus. Inc.), 204 F.3d
1276, 1279-80 (9th Cir. 2000) (“The filing of a proof of claim
is the prototypical situation involving the ‘allowance or disal-
lowance of claims against the estate,’ a core proceeding under
28 U.S.C. § 157(b)(2).”); 1 Collier, supra, ¶ 3.02[3][a] (“An
objection to a claim is classified as a core proceeding even
though, in another context, the litigation in question might be
related.”). One can readily see that allowing a claim for Conti-
nental would affect what was available for all creditors to
receive. Continental’s claim disputed or affected assets in the
§ 524(g) trust (the Settling Insurers’ contribution, indemnity,
and subrogation rights) and the rights of other creditors (the
asbestos claimants). Accordingly, resolution of that claim
directly impacted the administration of the bankruptcy estate.
See 28 U.S.C. § 157(b)(2)(A). On all these grounds we hold
that the resolution of Continental’s claim was a core matter in
the bankruptcy.
858 IN MATTER OF THORPE INSULATION CO.
C
We next address whether, in this core proceeding, the bank-
ruptcy court had discretion to deny Continental’s motion to
compel arbitration.
[7] As an initial matter, we note that Continental’s claim
is not, as Continental contends on appeal, “independent of
Thorpe’s bankruptcy.” From Continental’s initial letter
requesting arbitration and its arguments throughout this litiga-
tion, it is clear that “[Thorpe’s] bankruptcy filing and/or any
actions related thereto” are related to Continental’s claim. The
amended proof of claim challenges Thorpe’s acquisition of
the Settling Insurers’ contribution, indemnity, and subrogation
rights against Continental, its assignment of those rights to the
§ 524(g) trust, and its efforts to negotiate, structure, and con-
firm a plan designed to assist asbestos claimants in bringing
direct actions—all actions that Thorpe took to exercise its
rights in bankruptcy.
[8] Because Thorpe’s alleged breaches of the Settlement
Agreement were “inextricably intertwined” with its bank-
ruptcy, the bankruptcy court determined that resolving Conti-
nental’s claim required adjudication of “whether in
conducting and administering these Chapter 11 cases and
negotiating with the various constituencies involved in the
case concerning the prospect of a consensual plan of reorgani-
zation, [Thorpe] has somehow run afoul of contractual provi-
sions contained in a prepetition settlement agreement,” and
that “[a]s a matter of fundamental bankruptcy policy, only a
Bankruptcy Court should decide whether the manner in which
someone has administered a bankruptcy estate gives rise to a
claim for damages.” In other words, the nature of the allega-
tions were such that adjudication of Continental’s claim in
any forum other than a bankruptcy court would conflict with
“fundamental bankruptcy policy.” As such, the bankruptcy
court concluded that it had discretion not to send the claim to
arbitration. The district court agreed, stating that Continen-
IN MATTER OF THORPE INSULATION CO. 859
tal’s claim raised questions “go[ing] to the heart of § 524(g)
and the management of an asbestos-related bankruptcy
estate,” that “should be resolved by a bankruptcy judge and
not an arbitrator.”
[9] We agree. The purpose of § 524(g) is to consolidate a
debtor’s asbestos-related assets and liabilities into a single
trust for the benefit of asbestos claimants. See H.R. Rep. 103-
835, at 46-48. Congress intended that the trust/injunction
mechanism be “available for use by any asbestos company
facing . . . overwhelming liability.” See id. at 48. Congress
tasked bankruptcy courts with ensuring that § 524(g)’s “high
standards” are met and gave them authority to implement and
supervise this unique procedure. See id. at 47. A claim based
on a debtor’s efforts to seek for itself and third parties the pro-
tections of § 524(g) implicates and tests the efficacy of the
provision’s underlying policies. Because Congress intended
that the bankruptcy court oversee all aspects of a § 524(g)
reorganization, only the bankruptcy court should decide
whether the debtor’s conduct in the bankruptcy gives rise to
a claim for breach of contract. Arbitration in this case would
conflict with congressional intent.
Even apart from § 524(g), the purposes of the Bankruptcy
Code include “[c]entralization of disputes concerning a debt-
or’s legal obligations” and “protect[ing] creditors and reorga-
nizing debtors from piecemeal litigation.” In re White
Mountain Mining, 403 F.3d at 170; In re Nat’l Gypsum, 118
F.3d at 1069.9 Arbitration of a creditor’s claim against a
9
Continental argues that judicial economy and centralization of disputes
are not sufficient bases for nonenforcement of an otherwise applicable
arbitration clause. In general, this proposition is correct, see Moses H.
Cone, 460 U.S. at 20, but it does not hold in the bankruptcy context. In
rejecting essentially the same argument that Continental makes here, the
Fifth Circuit stated, “[I]nsofar as efficiency concerns might present a gen-
uine conflict between the Federal Arbitration Act and the [Bankruptcy]
Code—for example where . . . severe delays would prejudice the rights of
creditors or the ability of a debtor to reorganize—they may well represent
legitimate considerations.” In re Nat’l Gypsum, 118 F.3d at 1070 n.21.
860 IN MATTER OF THORPE INSULATION CO.
debtor, even if conducted expeditiously, prevents the coordi-
nated resolution of debtor-creditor rights and can delay the
confirmation of a plan of reorganization. An example may
help to illuminate the problem: Suppose that (1) several credi-
tors seek to arbitrate their prepetition claims; (2) each is a
party to an agreement containing an arbitration clause; and (3)
under the arbitral rules governing the arbitrations, while effi-
ciency is favored there is no absolute time limit on the arbitra-
tion, with the pace of proceedings resting on decisions of
arbitrators. In such a case separate arbitrations would so frac-
ture the plan confirmation process that one could never say
for sure when it could be brought to conclusion for the benefit
of the debtor and all creditors. To a certainty, in such a case
the bankruptcy court would lose control over the timing of the
reorganization because it would not have control over the tim-
ing of the arbitrations. The general need in any bankruptcy
proceeding for centralization is heightened in a § 524(g) pro-
ceeding involving multiple insurers and numerous asbestos
claimants. See In re U.S. Lines, 197 F.3d at 641 (“[T]he bank-
ruptcy court is the preferable venue in which to handle mass
tort actions involving claims against an insolvent debtor.”). In
the § 524(g) context, delay not only disrupts a debtor’s efforts
to reorganize, but also affects the rights of countless asbestos
claimant creditors, for whose benefit in part § 524(g) was
enacted. Pragmatic concerns such as these pose a serious con-
flict between arbitration, normally a benign and efficient form
of dispute resolution, and the underlying purposes of the
Bankruptcy Code, which are tailored to the needs of debtors
and creditors. See In re Nat’l Gypsum, 118 F.3d at 1069-70
& n.21.
[10] Continental’s claim, including the remanded portion
of it, is based on Continental’s challenge to Thorpe’s efforts
to seek § 524(g) relief and confirm a § 524(g) plan. There was
no error in the bankruptcy court concluding that such a claim
must be resolved by a bankruptcy court, not an arbitrator.10
10
The Supreme Court has admonished that “courts must examine a com-
plaint with care to assess whether any individual claim must be arbitrat-
IN MATTER OF THORPE INSULATION CO. 861
Moreover, centralizing the dispute in this case had heightened
importance because the bankruptcy court found a need to
expedite resolution of Continental’s claim—to allow pay-
ments to Thorpe’s creditors “as soon as possible”—and to
coordinate resolution of the claim with the plan confirmation
process. In accord with the courts below, we conclude that
arbitration of the claim presented by Continental would con-
flict with the purposes and policies of § 524(g) and the Bank-
ruptcy Code as a whole.11 Accordingly, the bankruptcy court
had discretion not to enforce the arbitration clause. And, for
the reasons set forth above, we hold that the bankruptcy court
did not abuse its discretion in denying Continental’s motion
to compel arbitration.
IV
Continental challenges the disallowance of its claim on pro-
cedural and substantive grounds. It contends that the bank-
ed.” KPMG LLP v. Cocchi, 132 S. Ct. 23, 26 (2011) (per curiam). If
Continental on remand had presented a standalone claim relating solely to
Thorpe’s prepetition encouragement of direct actions, that claim likely
should have been arbitrated, and we read the bankruptcy court decision to
indicate that if the claim was limited and isolated to prepetition matters
independent of the bankruptcy, then the bankruptcy court might have sent
such a narrow claim to arbitration. But because Continental steadfastly
declined to limit its post-remand claim, we agree with the bankruptcy
court that sending the claim to arbitration risked the arbitrator “tread[ing]
upon matters that were properly decided by the Bankruptcy Court” and
potentially “run[ing] into a violation of bankruptcy policy.”
11
Citing Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.),
912 F.2d 1162, 1168 (9th Cir. 1990), Continental argues that any potential
conflict between arbitration and the Bankruptcy Code could be avoided by
first allowing the arbitrator to decide the merits of its claim, and then hav-
ing the bankruptcy court decide how the claim, once established, should
be administered in the bankruptcy. But Continental’s claim, unlike the
claim in Tuscon Estates, overlaps with the substantive provisions of the
Bankruptcy Code, and would significantly interfere with the § 524(g) pro-
cess. Continental’s proposed solution would not avoid the conflict we
identify.
862 IN MATTER OF THORPE INSULATION CO.
ruptcy court should not have summarily disallowed its claim
without permitting it to conduct discovery. It argues further
that the bankruptcy court’s interpretation of the Settlement
Agreement and its conclusion on prepetition waiver were
erroneous. We address these arguments in turn.
A
A bankruptcy court abuses its discretion in denying discov-
ery only if “the movant diligently pursued its previous discov-
ery opportunities, and can demonstrate that allowing
additional discovery would have precluded summary judg-
ment.” See In re Slatkin, 525 F.3d at 810 (quoting Bank of
Am., NT & SA v. PENGWIN, 175 F.3d 1109, 1118 (9th Cir.
1999)).
Continental complains that “discovery by it was completely
and without exception foreclosed.” Our review of the record
leads us to a contrary conclusion. Before the October 16, 2008
hearing, Continental did not conduct any discovery, but not
because the bankruptcy court forbade it from doing so.
Though the bankruptcy court told Continental that it could
“wait” to do its discovery until after the hearing on its motion
to compel arbitration, the bankruptcy court said, in the same
breath, that it would not “prohibit” Continental from doing
discovery. Continental made its own strategic choice to
forego discovery because it hoped to conduct its discovery in
the arbitration.12 Then, two days before the October 16 hear-
ing, Continental filed an emergency motion seeking to con-
duct discovery and requesting that the bankruptcy court
12
The following statement, from a declaration filed on October 2, 2008
in support of Continental’s opposition to Thorpe’s claim objection, is per-
tinent: “[Continental] believe[s] that any discovery related to the proofs of
claim and the objections should be conducted in the arbitration, not in this
Court. Accordingly, [Continental] ha[s] not yet served any discovery.
. . .” The declaration then outlined the discovery that Continental thought
relevant to the merits of its claim, but Continental did not thereafter serve
discovery requests on Thorpe or third parties.
IN MATTER OF THORPE INSULATION CO. 863
continue its decision on the merits of Thorpe’s claim objec-
tion. The bankruptcy court denied the motion, stating, “At no
time did this Court preclude Continental from engaging in
discovery with respect to Thorpe’s objection to the Claim.
. . . Continental’s tactical decision to defer discovery does not
constitute good cause for continuing the hearing.”13
Also, the bankruptcy court sustained Thorpe’s claim objec-
tion and disallowed Continental’s claim as a matter of law. It
explicitly reasoned that “any evidence that Continental may
have obtained in discovery would not change the outcome of
the objection to the Claim.” Though stated after the initial,
October 16, 2008 hearing, this reasoning also applies to the
claim and claim objection on remand, because Continental
refused to present a standalone claim on Thorpe’s prepetition
encouragement of direct actions.14 If the bankruptcy court was
13
Continental conceded this point at the post-remand hearing on its
claim:
THE COURT: . . . It’s not true that discovery was not allowed
in connection with this. If you go back [before the October 16,
2008 hearing], I said you don’t need to do it now because if I’m
going to decide . . . on a factual issue, I’ll give you a further
opportunity.
But it isn’t that it wasn’t allowed. In fact, there was a point in
time where . . . it was intentionally not going to be done by [Con-
tinental] here in this forum because you wanted very much to go
back to arbitration. So it isn’t that I precluded you from doing
discovery, but I understand that I said I’d give you more time
later [if there were issues of fact to be resolved].
MR. JACOBS [Counsel for Continental]: I actually agree with
the Court. I stand corrected.
14
After the case was remanded, the bankruptcy court did not permit
Continental to conduct discovery, despite Continental’s Rule 56(f) request.
See Fed. R. Civ. P. 56(f); Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832,
846 (9th Cir. 2001) (“[T]he Supreme Court has restated [Rule 56(f)] as
requiring, rather than merely permitting, discovery ‘where the nonmoving
party has not had the opportunity to discover information that is essential
to its opposition.’ ” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
864 IN MATTER OF THORPE INSULATION CO.
correct, that there were no issues of fact and that the claim
was properly disallowed as a matter of law, then Continental
would be hard pressed to “demonstrate that allowing addi-
tional discovery would have precluded summary judgment.”
See In re Slatkin, 525 F.3d at 810.
[11] Given Continental’s decision not to conduct discovery
before the October 16, 2008 hearing, its decision that it would
not argue the remanded issue as a standalone claim, and the
bankruptcy court’s resolution of Continental’s claim as a mat-
ter of law, we conclude that the bankruptcy court did not
abuse its discretion by declining to give Continental further
opportunity for discovery.
B
Continental next challenges the bankruptcy court’s merits
determination that Thorpe’s actions in pursuing a § 524(g)
reorganization did not create a claim for damages. Continental
contends that Thorpe breached the Assignment Warranty by
acquiring the Settling Insurers’ claims and assigning them to
the § 524(g) trust, and that it breached the Establishment War-
ranty by collaborating with asbestos claimants to structure and
confirm a § 524(g) plan. But even if the covenants in the Set-
tlement Agreement by their terms would have proscribed
these actions, we conclude that, to the extent that they did,
242, 250 n.5 (1986))). The bankruptcy court explained that it was not
inclined to grant summary judgment on the basis of either Thorpe’s legal
arguments about the Settlement Agreement language or its factual argu-
ment that it had not encouraged the direct actions. The bankruptcy court
said at first, “I would be inclined to continue this hearing and let there be
discovery on the issue of what was actually said and was there actually
any encouragement.” Once it concluded that Continental’s claim as pre-
sented was inseparable from Thorpe’s exercise of its rights in bankruptcy,
the bankruptcy court held that discovery was not necessary and granted
summary judgment based on its reasoning before the prior appeal to the
district court which yielded the partial remand.
IN MATTER OF THORPE INSULATION CO. 865
they were not enforceable, because they then would be pur-
ported prepetition waivers of the protections of the Bank-
ruptcy Code, which need not here be permitted.
We have held that “[i]t is against public policy for a debtor
to waive the prepetition protection of the Bankruptcy Code.”
Bank of China v. Huang (In re Huang), 275 F.3d 1173, 1177
(9th Cir. 2002). “This prohibition of prepetition waiver has to
be the law; otherwise, astute creditors would routinely require
their debtors to waive.” Id. In Huang, a prepetition settlement
agreement provided that the debtor would not file for bank-
ruptcy and that a debt was not dischargeable in bankruptcy.
Though the Settlement Agreement here does not specifically
mention bankruptcy, other courts have said that prepetition
waivers of bankruptcy benefits generally are unenforceable.
See, e.g., Hayhoe v. Cole (In re Cole), 226 B.R. 647, 651-52
& n.7 (B.A.P. 9th Cir. 1998) (collecting cases); In re Pease,
195 B.R. 431, 434-35 (Bankr. D. Neb. 1996) (“[A]ny attempt
by a creditor in a private pre-bankruptcy agreement to opt out
of the collective consequences of a debtor’s future bankruptcy
filing is generally unenforceable. The Bankruptcy Code pre-
empts the private right to contract around its essential provi-
sions.”).
Similarly, specific provisions of the Bankruptcy Code
invalidate prepetition anti-assignment clauses that would limit
a debtor’s rights to assign its interests in bankruptcy. Section
541(c)(1)(A) states that, when a Chapter 11 case starts, an
interest of the debtor becomes property of the estate, “not-
withstanding any provision in an agreement, transfer instru-
ment, or applicable nonbankruptcy law . . . that restricts or
conditions transfer of such interest by the debtor.” Section
541(c)(1) thus overrides a contractual provision that “purports
to limit or restrict the rights of a debtor to transfer or assign[ ]
its interests in bankruptcy.” In re Combustion Eng’g, Inc., 391
F.3d 190, 219 n.27 (3d Cir. 2004). Section 1123(a)(5)(B)
states that “[n]otwithstanding any otherwise applicable non-
bankruptcy law, a plan shall . . . provide adequate means for
866 IN MATTER OF THORPE INSULATION CO.
the plan’s implementation, such as . . . transfer of . . . property
of the estate to one or more entities, whether organized before
or after the confirmation of such plan.” Cf. In re Combustion
Eng’g, 391 F.3d at 219 n.27 (“The Bankruptcy Code
expressly contemplates the inclusion of debtor insurance poli-
cies in the bankruptcy estate.” (citing §§ 541(c)(1),
1123(a)(5))).
Thorpe sought to use § 524(g)’s trust/injunction mecha-
nism. For its reorganization to succeed, asbestos-related assets
and liabilities had to be consolidated in the § 524(g) trust. The
inability to transfer valuable assets to the trust could have
thwarted confirmation of the plan. Thorpe acquired the Set-
tling Insurers’ contribution, indemnity, and subrogation
claims against Continental and assigned them to the trust pur-
suant to settlement agreements in which the Settling Insurers
agreed to fund the trust. Thorpe did not acquire the claims to
then assert them against Continental in its own right, nor did
it assign the claims to an independent third party to gain bene-
fit for itself. Thorpe transferred the Settling Insurers’ claims
to the trust to “provide adequate means for the plan’s imple-
mentation,” and the claims became assets of the trust for the
benefit of asbestos claimants. See 11 U.S.C. §§ 524(g),
1123(a)(5)(B). The Bankruptcy Code gave Thorpe, as a Chap-
ter 11 debtor, the right to acquire these assets and assign them
to the § 524(g) trust, “notwithstanding any provision in a[ ]
[prepetition] agreement.” See id. § 541(c)(1)(A); see also In
re Huang, 275 F.3d at 1175.15
[12] To confirm the § 524(g) plan, Thorpe also needed the
affirmative vote of 75 percent of asbestos claimants voting on
15
We reject Continental’s argument that the bankruptcy court erred in
concluding, without considering extrinsic evidence, that the Assignment
Warranty was not reasonably susceptible to the interpretation it urged.
Even if the Assignment Warranty precluded not only assignment of claims
but also acquisition of claims, which we doubt is correct, it would restrict
Thorpe’s ability to implement a § 524(g) plan and would be void as
against congressional policy in the Bankruptcy Code.
IN MATTER OF THORPE INSULATION CO. 867
the plan. 11 U.S.C. § 524(g)(2)(B)(ii)(IV)(bb). If Thorpe did
not negotiate with asbestos claimants and their representatives
to set a plan that they would support, a successful reorganiza-
tion would not have been possible. If, in negotiating the terms
of the plan, Thorpe had to accommodate the asbestos claim-
ants’ interests in preserving direct action rights and maximiz-
ing the trust’s insurance assets—interests potentially adverse
to those of Continental—it is not liable to Continental for
doing so. Thorpe could not contract away its right to avail
itself of the protections of § 524(g). See In re Huang, 275
F.3d at 1175. The courts below correctly disallowed Conti-
nental’s claim.
AFFIRMED.